Loophole in U.S. law could protect safe-injection site from federal crackdown

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Before this heroin camp in Kensington was torn down, users congregated to shoot up. City officials have been talking about establishing a

Before this heroin camp in Kensington was torn down, users congregated to shoot up. City officials have been talking about establishing a "safe-injection" site to cut down on opioid fatalities in the city where 1,200 people died of overdoses last year. (Emma Lee/WHYY)

With Philadelphia poised to become the first U.S. city to create a place for people to use heroin and opioids under medical supervision, one major unknown keeps the conversation hopping behind closed doors: What will the feds do?

If the “safe-injection” site does launch, will federal law enforcers crack down, as they have vowed to do in other places? And, if so, how will city officials fend them off?

A California law professor who wrote a legal textbook on the Controlled Substances Act thinks he has found a way for Philadelphia and other cities to block the feds from shutting down such a site.

According to Alex Kreit, law professor and expert on illegal drug policy at Thomas Jefferson School of Law in San Diego, an obscure provision in federal drug laws can essentially serve as a loophole to protect the injection site.

A section of the 1970 Controlled Substances Act provides immunity to state and local officials who commit drug crimes while enforcing a local law. It was intended to shield undercover police officers who buy drugs as part of a sting operation from being prosecuted with a crime.

“But there’s a pretty strong argument that can be made that it would provide immunity to states and localities and their officials to set up something like a safe-injection facility,” said Kreit, who recently presented his theory at a conference of law professors who were discussing the issue.

Kreit is working on a paper about the idea, which he hopes to share with Philadelphia and other municipalities mulling what kind of legal challenge a safe-injection site might provoke.

Working on a workaround

“In the worst-case scenario, people end up going to prison because they are implementing a safe-injection facility,” he said.

Kreit said that could be avoided if Philadelphia City Council were to pass an ordinance committing support to the controversial injection site — then city lawyers could pre-emptively file a federal lawsuit against the Department of Justice, asking a judge to block law enforcement from clamping down on city officials, citing the immunity provision.

“It’s pretty clear under the law that you need to have some kind of local or state ordinance to say, ‘We are enforcing this provision of local law,’ ” Kreit said

The infrequently cited rule has never been successfully applied this creatively before, and there are few past cases to use as guidance about whether this approach would work.

Kreit said the provision has been deployed in situations where authorities seized marijuana then returned it in states where pot has been legalized. Courts have said the federal government can use the rule as assurance that handing the marijuana back would not cause authorities to be prosecuted.

In Vermont, where some lawmakers are also pushing for a safe-injection site, the new U.S. attorney appointed by President Trump issued a statement saying that opening such a facility will trigger criminal prosecution of medical staff working the site and drug users. Authorities there also promised to seize any assets of such a facility.

It is unclear whether the top federal prosecutor for the district covering Philadelphia would have the same reaction. Trump nominated conservative lawyer William McSwain to be the U.S. attorney for the eastern district of Pennsylvania, but the Senate has yet to schedule a hearing on his confirmation.

Legal observers say U.S. attorneys usually have a fair amount of autonomy over  choosing what prosecutions to pursue, but Kreit said he could see Attorney General Jeff Sessions ordering Philadelphia’s top federal prosecutor to do something about a safe-injection site.

“Given Sessions’ recent and longer-term history of drug policy,” Kreit said, “it’s hard to imagine, politically, him not doing something in response.”

A solution or a stretch?

Not every legal expert is convinced Kreit’s inventive suggestion would be a strong enough bulwark against the feds.

“This is a real stretch,” said Bob Reinstein, a law professor at Temple University. “I don’t see any way around the federal government having the power to close this down and arrest everyone involved.”

Reinstein said the best bet would be for advocates to convince federal authorities not to get involved on public health grounds.

“It’s a political case, not a legal case,” Reinstein said.

Lawyer Douglas Marlowe of the National Association of Drug Court Professionals also is skeptical Kreit’s argument would win in court

“The analogy to an undercover narcotics officer is, obviously, faulty,” Marlowe said. “But I honestly don’t know how a court would decide the matter.”

Opioids were the main driver in what Philadelphia officials believe were more than 1,200 fatal drug overdoses last year. That is four times the city’s homicide rate.

Confronting this scourge, many public health experts say safe-injection sites in Canada and Europe have saved lives and provided a link to detox and other drug treatment services.

Larry Krasner, Philadelphia’s new district attorney, has vowed not to charge anyone connected to a safe-injection site. Mayor Jim Kenney and Police Commissioner Richard Ross say publicly the matter is still under study, and the federal government’s reaction is inevitably part of that calculation.

When asked if Drug Enforcement Agency officials would crack down on a Philadelphia injection site, agency spokesman Pat Trainer replied, “I can’t say that.”

“For DEA, as a federal law enforcement agency, we are tasked with going after the biggest and most complex drug-trafficking organizations out there supplying the city,” he said.

Under a Democratic administration, Kreit said, he could imagine federal law enforcement taking a hands-off approach to a safe-injection site. Even now, though, he said it is possible that the federal government will not meddle at all.

However, barring a court order stopping U.S. authorities from descending on the facility, the case for the crackdown would be fairly straightforward.

“If the feds were truly dedicated to this, they can just have DEA agents waiting outside,” Kreit said. “And you’d definitely have reasonable suspicion.”

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